Education Law Prof Blog

DeVos's Rationale for Eliminating the Federal Office for English Language Learners Ignores a Major Point

Education Week reports that Betsy DeVos is considering scrapping the Office of English Language Acquisition (OELA).  The work of this office would be subsumed by the Office of Elementary and Secondary Education, which administers a broad range of federal education programs. As the title of OELA suggests, this office is devoted exclusively to the fastest growing student populations in the country—English Language Learners (ELL).  Public schools enroll more than 5 million ELL students.

DeVos argues that this consolidation would lead to more efficient administration of federal programs.  According to her spokeswoman, "The department is in the early stages of considering how best to break down silos, improve policy and program coordination and ensure all students have the support, attention and resources they deserve from the department."

From the DeVos’s perspective, this is about bureaucracy.  From those advocacy groups opposing the consolidation, this is about which is office is likely to do a better job.

Both of those arguments go to a level of detail that the average person might struggle to evaluate.  Let me offer a more simple framing.

English Language Learners hold a unique place in federal education law.  Schools owe ELLs, along with students with disabilities, an affirmative obligation.  In 1974, Congress passed the Equal Educational Opportunities Act.  The Act makes it unlawful for schools to fail to take “appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”

Most people are relatively familiar with the IDEA (Individuals with Disabilities Education Act).  It, similarly, requires schools to create individualized education plans and support services for students with disabilities.  The point is that these students face unique education barriers and schools must take affirmative steps to help them overcome them.

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Bilingual Education Returns to California--Kind Of

For those who have taught or taken education law in recent years, you have probably touched on the seesaw history of bilingual education in our schools.  The trend of the last two decades has included the banning or limiting of bilingual education and the move toward immersion programs.  That shift came to a head in Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002)--a rather complicated case to teach.  More than sixty percent of Californian's had voted to ban bilingual instruction.  This prompted a legal challenge, alleging that the ban was discriminatory and motivated by ethnic animus.  The court rejected the challenge, reasoning that the motivation behind the legislation was to improve education.  The case involved the same political inequality theory that was recently taken up by the U.S. Supreme Court in Schuette v. Coalition to Defend Affirmative Action--the case challenging Michigan's ban on affirmative action. 

While Valeria and Schuette turned out poorly for civil rights advocates, they have now secured a win in the court of public opinion.  California, by a vote of 73-27 percent, just reversed course again and ended the era of English-only instruction in its public schools.  Nuance and problems, however, still loom.  First, as NPR explains,

[I]t'll be up to school districts to decide locally whether they want to offer bilingual education or not, based on parents' demand for it. Under the new measure, if at least 20-30 parents want bilingual instruction for their children, their school will have to provide it. Even if only a few parents want it — less than 20 — that could put pressure on schools to make and force school district officials to intervene and come up with an accommodation.

The main change under Proposition 58 is that parents no longer have to sign a waiver in order to enroll their children in a dual language or bilingual classroom. Under English-only policies, teachers were prohibited from making any recommendation on bilingual education, so that could change too.

Second, California has an enormous capacity problem.  When it banned bilingual education two decades ago, it helped dry up the pipeline of teachers with the training and skills to offer bilingual instruction.  That problem is only further amplified by the fact the general teacher pipeline was also decimated by the recession and state policy in response to it.  As I detail in Taking Teacher Quality Seriously and Averting Educational Crises: Funding Cuts, Teacher Shortages, and the Dwindling Commitment to Public Education, California, along with a number of other states, have a very big hole to dig themselves out of.  In other words, there are not enough qualified teachers to fill basic education spots, much less bilingual education.

 

Florida School Board Sued For Allegedly Funneling Recent Immigrant Students To Non-Credit, Fee-Based Program

The Southern Poverty Law Center filed suit yesterday in the Middle District of Florida challenging a policy of the Collier County, Florida School Board for allegedly steering English language learner (ELL) students off-site for adult English-only instruction. The named plaintiffs are two Guatemalan teens who were denied admission to high school in the Collier County district and instead referred an off-site, non-credit, adult, English language-only class at a local technical college. At issue is Collier County's age policy, which denies high school admission to students who are 17 years old or older who cannot meet graduation credit requirements by the end of the school year of their 19th birthday. The lawsuit alleges that despite federal and state civil rights laws and the federal and state mandates to teach and bring ELL students to grade level, the Collier County Board's policy acts to deny admission to recent immigrant students who lack English proficiency. The suit's allegations highlight potential barriers faced by immigrant children who seek to enroll in U.S. schools. A recent report by the Georgetown Law Human Rights Institute, Ensuring Every Undocumented Student Succeeds: A Report on Access to Public Education for Undocumented Children, cited similar examples of schools'  discouraging "enrollment of undocumented students due to ancillary considerations, such as testing, grade placement, and prospects of graduation." A copy of the SPLC lawsuit can be found here.

 

When Integration, Closing Achievement Gaps, and Overcoming Language Barriers Go Hand-in-Hand

Yesterday, Rebecca Klein published an excellent story exploring a bilingual program in Oregon that appears to be improving outcomes in all respects for all students involved.  She writes:

Heritage Elementary School isn't a fancy private school, or even a public school nestled in an affluent suburb where parents pay high property taxes to give their kids a good education. It's part of the Woodburn School District, which has an expansive dual-language program although the vast majority of students qualify for free or reduced-price lunch.

Many students enter Woodburn schools without knowing any English, but can switch seamlessly between two languages by the time they leave.

And these students are not just bilingual. Woodburn students are also more likely to graduate from high school than students from districts with similar populations and levels of poverty, according to Chuck Ransom, the district's superintendent. Most importantly, they're more likely to continue on to higher education, which leads to better job opportunities and, ultimately, a better quality of life.

. . . .

But in 2014, Woodburn School District had the highest on-time high school graduation rate for Latino students in the state, and the second-highest graduation rate for students who weren't native English speakers. Its overall graduation rate fell within the top 10 percent of Oregon school districts. 

In the decade since the district enacted its dual-language program, the gap in graduation rates between Woodburn's English language learners -- or ELLs -- and native English speakers has closed. Experts say that if implemented properly, dual language programs not only encourage students to appreciate other cultures as well as their own, but can even help desegregate districts where minority students and their white counterparts attend separate and unequal schools.

Just before the recession, I had a growing sense that programs like these were going to take off, as parental demand was increasing.  Unfortunately, the recession promoted an isolationist mentality where communities tried to protect whatever they had and did not dare try something new--save the new curriculum and teacher evaluation policies the federal government was forcing on them.  Klein's story suggests we may be returning to more sane times.  Even in Columbia, South Carolina--not typically a leader on these issues--the district conducted a survey this past fall to test parental interest in starting a bilingual school in the near future.  The district has relatively significant segregation challenges and this would be a significant step to begin addressing some of it.

California Settles English Language Learner Case, Promising to Implement Better Standards and Oversight

California has reached a settlement in DJ v. State of California.  Plaintiffs charged that the state Department of Education was failing to carry out its obligations to English Language Learners (ELLs) and the trial court agreed.  Under federal law, the Equal Educational Opportunities Act requires states and schools to take affirmative action to help ELLs overcome language barriers and make appropriate educational progress.  California's state constitution also establishes education as a fundamental right and requires the state "to intervene when the educational opportunity provided to some students falls below "prevailing statewide standards. . . The failure to provide appropriate services to EL students denies them equal educational opportunity."  DJ v. State of California, BS 142775 (Sept. 14, 2015).  

Applying those standards, last fall, the trial court found that the Department had failed "to take appropriate action in response to reports from districts that EL students have not received instructional services.  Petitioners are also entitled to an injunction requiring Respondents to establish procedures that effectively ensure all EL students receive required EL instructional services."  

The state has now agreed to put specific remedies in place to address these failures.  The state promised to collect and monitor more accurate data on ELLs, make that data publicly available, establish standards that increase the likelihood of triggering onsite evaluations of ELL programs, seek additional funding for new staff to oversee the program, and conduct a compliance review in Compton Unified School District.

 More here.

Ninth Circuit Rejects Challenge to Arizona's Newest English Language Learner Program

The 9th Circuit Court of Appeals has issued a new decision in Flores v. Arizona, the long running English Language Learner ("ELL") litigation in Arizona. The Ninth Circuit upheld the district court’s finding that the state was taking “appropriate action” to meet the educational needs of ELLs and, thus, in compliance with the Equal Educational Opportunities Act. This recent litigation stems from the remand by the Supreme Court in Horne v. Flores in 2009, where the Court had found that the lower court erred in failing to sufficiently consider whether changed circumstances entitled the state to an equitable modification of the existing consent decree in the case.

In this recent round of litigation, the plaintiffs challenged the State’s newest ELL program.  The new program requires ELLs to be separated from their classmates for four hours per day to focus solely on learning English. Plaintiffs argue this violates the Equal Educational Opportunities Act because students do not get to make up the subject matter they miss while in regular education while they are in their English acquisition classes.  In other words, they receive less academic content than their classmates. The Ninth Circuit disagreed and also indicated the challenge was premature in any event: while "[t]he Flores Plaintiffs appear to be challenging the four- hour model as facially violating the EEOA,” they are actually “attacking the implementation of the four-hour model” after just one year of the program.  The relevant three-prong standard for evaluating ELL programs includes a timing element, under which states and districts are afforded an opportunity to demonstrate that the program works.  See Castenada v. Pickard, 648 F.2d 989 (5th Cir., 1981).

 

New York City's Systematic Failure to Share Information with Non-English Speaking Parents

The New York Immigration Coalition’s  newest report shows systemic failures to offer translation and interpretation services for parents in New York City’s schools. Such failures, of course, would be potential violations of several federal education laws, including Title VI, the Equal Education Opportunities Act, and the Individuals with Disabilities in Education Act.

The report finds that:

• Half of parents are missing critical information because it’s not translated or because they don’t have an interpreter.
• More parents report never receiving services now than in 2007.
• Parents are relying on children to interpret on a large scale despite the DOE’s own regulations prohibiting this practice in most settings.
• Almost a decade after the Chancellor codified parental language access rights and formed a special unit, a large percentage of parents still don’t know that they can get translation and interpretation.
• Lack of access to translation and interpretation greatly impedes parents’ ability to be engaged in their children’s education.

 

Office for Civil Rights Releases Report to Congress: This Time It Is a Must Read

The Office for Civil Rights has released its 2013-2014 report to Congress and the President.  From my perspective, past reports have been dense and un-illuminating.  This current one strikes a very different approach.  First, it is very well written.  Second, it is very well framed and organized. Third, and maybe most important, it is incredibly informative.  Fourth, it is analytical.  Fifth, it is visually appealing.  Sixth, it implicitly suggests courses of action or concern.  Overall, it presents as a study in the state of civil rights and equity in our nation's schools, rather than a bureaucratic account of the beans counted in the past two years.  

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Where Do Novice Teachers Go? New Study Says English Language Learner Classrooms

Dafney Blanca Dabach's new study, Teacher Placement Into Immigrant English Learner Classrooms Limiting Access in Comprehensive High Schools, is now available here.  The abstract is as follows: 

This qualitative study examined how secondary teachers were assigned to teach courses intended to expand English learners’ (ELs’) access to academic subjects. Theoretically, this research extends the “contexts of reception” framework from immigration studies into the educational realm by investigating how teachers—as one important contextual variable—entered into settings designed for immigrant-origin ELs. Analysis examined institutional processes, norms, and policies as well as participants’ practices. Findings suggest that novice teachers were most likely to be placed into separate EL content-area classrooms, unless more senior teachers requested these assignments or administrators intervened. Ultimately, this article uses teacher assignment processes to illustrate how contexts for immigrant-origin youth are constructed and contested and how ELs’ opportunities to learn were jeopardized in local settings.

New Scholarship on School Funding, Segregation, Native American Culture, Formerly Religious Charter Schools, and Tenure

The Brigham Young University Education and Law Journal has released its new issue, which includes several interesting articles.  The titles and abstracts are as follows:

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Building Teacher Capacity to Support English Language Learners in Schools Receiving School Improvement Grants

The Institute of Education Sciences' study of school turnarounds examines the improvement process in schools receiving federal funds through the School Improvement Grants (SIG) program over a three-year period (2010–11 to 2012–13 school years). Its newest brief focuses specifically on  those schools with high proportions of English Language Learner (ELL) students.  Those schools attempted to improve teachers' capacity for serving ELLs through staffing strategies and professional development (PD). Key findings that emerged from the ELL case study data collected during the 2011–12 and 2012–13 school years include:

• Few schools reported leveraging staffing strategies to improve teacher capacity for serving ELLs. Administrators in 3 of the 11 schools reported considering ELL expertise and experience when hiring classroom teachers, while respondents in 2 of the 11 schools reported that teachers' ELL expertise and experience purposefully factored into assignment of teachers to specific classrooms.
• Most teacher survey respondents (54 to 100 percent) in all 11 schools reported participating in ELL-related PD during the 2011–12 school year. On average, teachers reported that ELL-related PD accounted for less than 20 percent of their total PD hours.
• Teacher survey respondents in schools that reported a greater PD focus on ELL-related topics, such as instructional strategies for advancing English proficiency or instructional strategies to use for ELLs within content classes, also generally appeared more likely to report that PD improved their effectiveness as teachers of ELLs.

Download the full report here.

Justice and Education Release Streamlined Guidance on English Language Learners

The U.S. Departments of Education and Justice yesterday released joint guidance on schools' legal obligations to English Language Learners.  They also released some tools and resources to assist schools in carrying out their obligations.  Those tools and resources include:

• A fact sheet in English and in other languages about schools’ obligations under federal law to ensure that English learner students can participate meaningfully and equally in school. 
• A fact sheet in English and in other languages about schools’ obligations under federal law to communicate information to limited English proficient parents in a language they can understand.
• A toolkit to help school districts identify English learner students, prepared by the Education Department’s Office of English Language Acquisition. This is the first chapter in a series of chapters to help state education agencies and school districts meet their obligations to English learner students. 

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Enrolling Immigrant Students: The Difference Between Rights and Reality

In 1982 in Plyer v. Doe, the Supreme Court struck down a Texas statute that prohibited school districts from enrolling undocumented immigrant students.  The Court held that the statute was discriminatory and unconstitutionally irrational.  States have enacted statutes similarly aimed at discouraging immigrant students from enrolling on a few occassions since then.  None, however, have gone into practical effect, as all have been deemed unconstitutional in short order.  In some instances, legislators allowed that they knew the legislation was unconstitutional, but wanted the Court to revisit the rationale of Plyer v. Doe.  The Court, of course, has not done so.

Statutes and policies of this sort remain unconstitutional and fervor for them has died down in the past few years. This year, however, has brought a new, but related problem, particularly in those localities that have seen an influx of unaccompanied minors escaping violence, kidnapping threats, and the like in their home countries.  Some school districts say they are overwhelmed by the influx of students, and lacking in the space and resources necessary to serve them.  Those excuses, however, would earn the districts no quarter in refusals to enroll the students.  Instead, the districts admit the students are eligible to enroll, but have excluded them based on inadequate paperwork and documentation.  Yesterday's New York Times tells the story of students in Long Island waiting months to be enrolled in the schools, and points out that the problem is not unique to Long Island:

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Office for Civil Rights Goes After Tracking in New Hampshire and Language Access in Pennsylvania

Last month, OCR reached two significant settlement agreements.  The first was with New Hampshire’s Manchester School District, School Administrative Unit #37.  The settlement agreement was in response to tracking and unequal access to college and career preparatory courses for black and Latino students.  The most stark disparities were in the district’s AP courses. "Despite the enrollment of 381 black students and 596 Latino students at the high schools, only 17 seats in AP classes went to black students and only nine seats in AP classes went to Latino students, out of the total of 434 seats in AP courses. At two of the three high schools, there were no Latino students enrolled in the AP courses."  OCR found a number of structural barriers in the district's policies that lead to these disparities.  The district agreed to several steps to address the disparities, the most notable of which were:

• Identify and implement strategies subject to OCR review and approval to increase student participation in its higher-level learning opportunities, particularly for underrepresented groups such as black, Latino and ELL students.
• Consider increasing the numbers and types of courses, adding more teachers qualified to teacher higher-level courses and revising selection criteria for enrollment in higher level learning opportunities if these are barriers to increased participation.
• Specifically assess the impact of assigning students to academic “levels” upon arrival at the high schools on their participation in higher-level learning opportunities, and consider eliminating the system of student assignment to levels or altering the current criteria or method of implementation.
• Specifically consider eliminating the GPA and class rank penalties associated with withdrawing from higher-level courses.
• Provide increased support for students enrolled in higher level learning opportunities through counseling, peer support groups and tutoring.

A copy of the resolution letter can be found here. A copy of the agreement can be found here.

The other settlement agreement was with the Hazleton, Pa., Area School District.  OCR found that English Language Learner (ELL) students in the district did not have access to equal educational opportunities and that the district was not adequately notifying their parents of information made available to other parents in English.  More than 10 percent of Hazleton's students are ELLs, which would suggest a scale that should have allowed the district to operate a more robust program, but OCR found that the district was inappropriately excusing students from the English language development program, not providing the required instructional time for over 240 elementary school ELL students, not evaluating the effectiveness of its program, and not using an effective system to identify and communication with limited English proficient parents.  The district agreed to take the following steps:

• Ensuring that students whose primary home language is not English will be promptly assessed for English language proficiency to determine eligibility for placement in an English language development program and that students will not be improperly exempted from assessment;
• Assessing students who were improperly exempted from language proficiency assessment to determine whether they may be eligible to receive English language development services;
• Conducting a comprehensive evaluation of the English language development program at each school level to determine its effectiveness and making modifications to address areas where the program is not meeting the district’s goals;
• Developing and implementing policies and procedures to ensure that LEP parents are notified, in a language they understand, of school activities that are called to the attention of other parents; and
• Providing training to appropriate staff on procedures for identifying language-minority parents and on policies and procedures for serving language minority parents.

A copy of the resolution letter can be found here. A copy of the agreement can be found here.

New Federal Guidance on Equal Educational Opportunity, Regardless of Immigration Status

The Departments of Education and Justice have released this new guidance on access to school for immigrant children:

Dear Colleague:

Today, Secretary Arne Duncan and Attorney General Eric Holder announced updated guidance to assist public elementary and secondary schools to ensure enrollment processes are consistent with the law and fulfill their obligation to provide all children – no matter their background – equal access to an education.

In 2011, the Departments of Justice and Education issued guidance to help schools understand their responsibilities under the Supreme Court’s decision in Plyler v. Doe and federal civil rights laws to provide all children with equal access to an education regardless of their or their parents’ immigration status. Today, the departments are issuing important updates to that guidance, including examples of permissible enrollment practices, as well as examples of the types of information that may not be used as a basis for denying a student entrance to school.   

The updated guidance documents— including a guidance letter to states and school districts and a fact sheet and Q and A document—emphasize the need for flexibility in accepting documents from parents to prove a child’s age and to show that a child resides within a school’s attendance area.  They also provide specific examples of the types of documents that many schools have accepted.  And the guidance documents remind schools that they may not require certain documents – such as a parent’s state-issued driver’s license – where such a requirement would prevent a student from enrolling because of his or her parent’s immigration status.

In the three years since the guidance was initially issued in 2011, the departments have worked collaboratively with states and school districts across the country to meet their obligations under Plyler and federal civil rights laws that prohibit discrimination on the basis of race, color and national origin. 

The important changes announced today will provide districts with the additional tools and practical guidance needed to make sure the schoolhouse door is open to all students and that undocumented children and children from immigrant families no longer face barriers to enrollment in school and starting down the path to a better future.

To view the guidance letter in Spanish, please click here. The fact sheet and Q and A document can be viewed in Spanish here and here, respectively.

Thank you,

The Departments of Education and Justice

Utah’s Bilingual Boon: A Red State Embraces Linguistic Diversity

One Nation Indivisible has released its newest story, Utah's Bilingual Boon, which profiles Spanish two-way bilingual programs in which native English speaking and native Spanish speaking students share classrooms and learn together in both languages. These two way programs are part of a larger, state-supported language immersion effort. This story took One Nation Indivisible to rural, urban and suburban schools in Heber City, Park City and Kamas.  See the full story here.

Bilingual Education Coming Back to California?

In 1998, California passed a ballot measure to ban bilingual education in public schools.  Similar initiatives followed in Colorado, Arizona, and Massachusetts, passing in the latter two states.  The ban in California led to litigation in Valeria v. Davis, 307 F.3d 103 (9th Cir. 2002), in which plaintiffs alleged the ban was motivated by discriminatory intent.  The Ninth Circuit disagreed, finding the state had a legitimate non-discriminatory explanation: its educational judgment that English immersion is the better pedagogy.  

A decade and a half after banning bilingual education, the state may be poised to reverse course. State senator Sen. Ricardo Lara has introduced a bill to repeal the ban on bilingual education.  He intends to put the issue before voters on the 2016 ballot.  Some believe that the politics have sufficiently changed in the state and the bill may pass.  Researchers also point out that bilingual education is not just a cultural or individual interest issue.  Rather, bilingualism is a valuable economic resource that the state needs to be able to tap.  While the economy has become global over the past 15 years, California's education system has effectively demanded that it remain local. For more on the bill and research, see here and here.

Students Get Relief in Settlement Agreement over Alabama's Anti-Immigration Bill

Two years after passing a sweeping anti-immigrant bill, Alabama is relenting.  The bill had wide-ranging impacts on immigrant communities (and those interacting with them) that touched on almost every aspect of their lives.  Some may recall that the bill included a measure that required schools to verify the immigration status of newly enrolled K-12 students.  The day after the bill went into effect, news reports indicated that scores of Latino students, in particular, went missing from school.  This included students who were, in fact, citizens or were legally in the country.  I never caught news of these students returning.  Alabama apparently achieved its presumed purpose: to encourage these families to leave the state.  I imagine that few of those uprooted families have intentions of returning to Alabama, but the settlement agreement negotiated by the Southern Poverty Law Center and other civil rights group with the state protects them if they do. The state has agreed to permanently abandon this and other aspects of the bill.  See here for more details.

 

U.S. Department of Education Requests Suggestions for Areas of ELL Research

In yesterday's Federal Register, the U.S. Department called on stakeholders to provide input into the Department's research priorities in regard to English Language Learners.  The public notices states:

Education (Department) requests information on priorities for future evaluation and research studies needed to inform effective instruction, assessment, and professional development that is responsive to the needs of English learners (ELs).

Comments are due by October 9, 2013.  The full notice is available here.

Missing Data on English Language Learners in Charter Schools

The Goverment Accountability Office had been tasked with comparing the enrollment of English Language Learners (ELLs) in traditional public schools versus charter schools.  Last month, it issued a report finding that it could not make the comparision because the "only available data on school-level ELL enrollment were unreliable and incomplete. Specifically, for over one-third of charter schools, the field for reporting the counts of ELLs enrolled in ELL programs was left blank. These blank fields cannot reliably be interpreted to mean that the charter schools did not have ELLs enrolled."  This national number, however, grossly understates the problem in many states.  Over 60% of charter schools in Idaho, Lousiana, Maryland, Michigan, Minnesota, Missouri, Pennsylvania, South Carolina, Wyoming, Kansas, New Hampshire, New Jersey, New York, and Ohio failed to provide ELL data.  The GAO also emphasized that this data failure in regard to ELL, while significant in an of itself, is likely an indicator of overall problems in data collection and reporting for charter schools.

        --db